Calls to impeach Trump based on his latest outrages are understandable and legally justified. However, impeachment at this late date is problematic for a variety of reasons. A better option—in fact, the only one that can accomplish something positive—is for Congress to censure him by concurrent resolution.
President Trump has repeatedly attempted to overturn the 2020 presidential election outcome through extrajudicial means, including pressuring state officials to alter election results, urging his vice president to violate his constitutional responsibilities, and, most recently, inciting an assault on Congress to prevent acceptance of state election certifications as provided for in the Constitution. There can be little doubt that these actions constitute impeachable offenses. Trump’s unhinged behavior also raises legitimate concern that his continuation in office even for the last few days of his term could threaten national security. However, even if the House impeaches Trump this coming week, it would be virtually impossible for the Senate to convict and remove him from office before his term expires. According to Senate rules, a Senate trial could not begin before January 20.
This means that impeachment is not a viable option to prevent Trump from taking dangerous action during the remainder of his presidency. Instead, Congress must rely on executive branch officials—the vice president, agency heads, and military leaders—to ensure that this does not happen. (It is highly likely that officials are already monitoring Trump and their own chains of command closely to ensure that he is reined in. If Trump should try something deranged, they can stop it and, if necessary, invoke section 4 of the 25th Amendment to have Vice President Pence supplant him for the rest of his term.)
Impeachment would have negligible punitive effect even if it is legal to convict Trump after his term expires, a debatable proposition. Some assert that Trump could lose significant financial benefits accorded to former presidents. However, under the plain terms of the Former Presidents Act, these benefits are denied only to a president who is actually “removed” from office by impeachment and conviction—not one who is convicted after his term ends. It is perhaps possible that Congress could disqualify from future office a president who is impeached and convicted even on an ex post facto basis. As a practical matter, however, Trump has already forfeited any realistic prospect for future election by his recent conduct.
Given the above, impeachment at this stage would be little more than a symbolic gesture, and one that carries negative political consequences. While Trump’s actions have been widely condemned, a rushed impeachment and post-removal trial would be highly divisive and probably attract little bipartisan support. Such an unprecedented and legally fraught undertaking would be all too easy for Republicans to oppose even if they disapprove of Trump. The effort might well be viewed by many as an unserious partisan stunt, making it very difficult to attract the two-thirds vote necessary to convict in the Senate. Moreover, it is doubtful that President-elect Biden would relish a Congress bogged down in a distracting, protracted, hyper-political battle like this early in his administration. If for this reason Democrats delayed a Senate trial for a time, as has been suggested, the effort would lose its momentum. Whenever it occurs, however, the trial would almost certainly end in acquittal, thereby imposing no consequences and sending no clear or unified message.
A better option for Congress is to adopt a concurrent resolution condemning Trump’s actions. While likewise symbolic, this option has a much greater chance of succeeding and having a significant impact in terms of holding Trump accountable. A concurrent resolution would focus exclusively on Trump’s behavior, avoiding the side issues and baggage of impeachment described above. It would be very hard for Republicans to oppose and should therefore attract considerable bipartisan support. At the very least, it could almost surely achieve the simple majority vote needed to pass the House and Senate. At best, it could provide a strong, bipartisan, and unifying affirmation by Congress that misconduct like Trump’s is intolerable and must never occur again.